From "big plans" to improvisation: Where is the new Tunisian constituent process headed?

President Saied’s willingness to completely overhaul the system established by the 2014 Constitution is no longer in doubt. While his actions are spread out in time, and are sometimes in reaction to perceived provocation, in the aggregate they follow a clear logic: progressive dismantling of the existing system. Nevertheless, recent events (including the failure of an online public consultation) show that the President’s plans lack medium- and long-term vision, and we are witnessing growing improvisation which threatens the stability of the state and the major political deadlines decided by the President himself – writes Nidhal Mekki

For more than ten years, Tunisia has been at the heart of political and constitutional news in the Arab world and even internationally, not always for the same reasons and, unfortunately, not always for good reasons. After the adoption of the 2014 Constitution, Tunisia was hailed as the only Arab country to have completed a post-Arab Spring democratic transition, but since then Tunisia has experienced a series of political and institutional crises that have gone from intermittent to permanent, to the point where the state of crisis has become the "normal" state in Tunisia.

An intractable stalemate between the President and Prime Minister reached its peak on 25 July 2021, when President Kais Saied announced via decree his decision to freeze the parliament and dismiss the government. True to his political origins as an outsider winner in the 2019 elections with no political party links and critical of “the system”, Saied has since July 2021 been governing through decrees to dismantle and replace what he considers are self-serving politicians and, most importantly, unworkable institutions.

Notably, Saied suspended the two chapters of the 2014 Constitution relating to legislative and executive powers and any other provision contrary to the previous decree, Presidential Decree No. 117 of 22 September 2021. He then announced a national consultation to ascertain the opinion of citizens, particularly young people, on the future of Tunisia’s political system and economic and social policy as part of his “roadmap” toward a referendum on a new constitution on 25 July 2022 and parliamentary elections the following December.

While the online consultation was underway, the President dissolved the Supreme Council of the Judiciary on 6 February 2022. The President accused the Council of corruption and bias, including delaying investigations into political assassinations. A month later, the President established by decree a provisional supreme judicial council, with the President controlling the selection and appointment of judges. On 30 March 2022, the President announced the official dissolution of the parliament in response to over 100 members of parliament who, having been prevented by security forces from meeting physically, had tried to bypass the ban by organising an online session to annul the President’s actions.

Most recently, on 22 April 2022, the President issued a decree amending the Organic Law on the Independent High Authority for Elections (ISIE), reducing its members from nine to seven, with three appointed by him from among the former members of the ISIE, and four other members (three judges and an information technology specialist) also appointed by the President but nominated respectively by the Judiciary Council, the Administrative Judicial Council and the Financial Judicial Council, in the case of the judges, and by the National Center for Information Technology for the information technology specialist.

This sequence of events indicates the President’s intention to thoroughly review the system established by the 2014 Constitution and to elaborate a new constitution and a new political system for Tunisia.

This sequence of events indicates the President’s intention to thoroughly review the system established by the 2014 Constitution and to elaborate a new constitution and a new political system for Tunisia. It is interesting to note that the President intervened publicly while the online consultation was underway to underline how preliminary results supported the main ideas he advocates concerning the political system, his vision of justice, and the economy. Some of the questions in the consultation are clearly specific points of his programme (presidential regime, elected representative recall procedure, uninominal voting etc.), and the questions are formulated in a leading way. The fact that the President defended these points while the consultation was in progress and used state means to boost participation was perceived by many observers as an attempt by the President to impose his choices and to seek only to ratify a design already in place, not a sincere consultation of Tunisians. Is this correct, or is the President sincere and acting in good faith? It is difficult to ascertain the President's motivations and what his hidden agenda is, but what is certain is that his willingness to completely overhaul the 2014 system is no longer in doubt, even if the measures he takes are spaced out in time and sometimes seem to be simple reactions to events that he considers as provocations by some opposition parties. The truth is that, taken together, these actions follow a clear logic: progressive dismantling of the existing system.

But a careful examination of all these elements and their interaction with the national legal and political context shows certain weaknesses in the President’s plans that betray a lack of medium- and long-term vision and growing improvisation on issues of the utmost importance, such as the promised national dialogue, and the major political deadlines for constitutional reform decided by the President himself.

Legal and political context

The origins of the current constitutional and political situation in Tunisia were previously analysed in detail on ConstitutionNet. As previously stated, the President is acting in a political rather than legal framework that the President believes is justified by the need to put an end to political chaos, and with the explicit endorsement of the powerful General Union of Tunisian Workers (UGTT), the backing of certain political parties, and the enthusiastic support of a large part of the public. All these actors agree that there is no question of returning to the "pre-25 July" turmoil.

It was in this context that the President launched an online consultation on a new constitution, to solicit the opinion and proposals of young people on various subjects, ranging from their preferred system of government to the measures they propose to fight unemployment and reform the justice system. But this consultation was a failure, not least because of the small take-up (fewer than 600,000 people) but also since it did not arouse the interest hoped for by the President and his entourage.

In fact, following general nationwide consensus of the initiative’s failure, the political opposition believed that the time was right to take back control and repeal the President’s previous measures via an online plenary session of parliament. This was a miscalculation, since indifference to the consultation did not necessarily mean a broad popular opposition to the project or to the President's decisions, but rather a pure and simple weariness or disinterest in public affairs and, above all, the feeling among the population that the political class has the wrong priorities by focusing on theoretical constitutional debates and political reforms when the top priorities in the eyes of citizens are the decline in purchasing power, rising prices, and unemployment.

The President characterized parliament’s meeting as a “failed coup”, and ordered investigations of more than 30 members for conspiracy against state security.

The President characterized parliament’s meeting as a “failed coup”, and ordered investigations of more than 30 members for conspiracy against state security. The decision to dissolve the parliament, which had remained theoretically frozen until then, was not followed by massive demonstrations as the opposition had hoped (nor was the February decision to dissolve the Supreme Council of the Judiciary or the decree giving the President the power to appoint the members of the ISIE). A significant part of the population and the elites has remained indifferent or even welcomed it as a "long-awaited" measure.

These developments raise two main questions: if the population generally supports the President’s actions, what are the reasons for the failure of the online public consultation? And to what extent does this failure call into question President Saied’s roadmap to a new constitution?

Why did the consultation fail?

The development of new digital technologies should make it possible today, and even more so in the future, to use innovative participatory approaches in the political, legislative and even constitutional sphere. It was not, therefore, the principle of an online popular consultation that was problematic in Tunisia, but its modalities, which raised so many problems that it could serve as a model for procedural and substantive "mistakes to avoid" in future constitutional or legislative consultation in Tunisia or elsewhere.

Firstly, this consultation was announced without input from major political actors and civil society. This is an important point, as it prevented the building of a broad consensus on its importance and potential role in the constitutional reform process. Some parties were indifferent as they were not involved and others were openly hostile as they felt that the President had excluded them from the constitutional reform process. The public was outside the scope of this consultation even before it began.

Secondly, the consultation was largely presented as being aimed at young people, whereas anyone aged 16 and over could participate. This caused ambiguity regarding the target audience and apathy among the “less young.”

Moreover, the period devoted to the consultation (65 days, from 15 January to 20 March) was not sufficient to allow the greatest number of citizens to participate, especially as the survey questions were not explained via a public awareness campaign (some questions were technical and complicated but required simplistic answers such as Yes or No and others were multiple choice questions with nuances that exceeded the knowledge or training of ordinary Tunisians) and a large number of Tunisians have neither the internet nor computers, not to mention the illiteracy rate of 17.7%. This resulted in improvised measures to increase the number of participants, which provoked criticism and derision from Tunisians.

The online consultation was not really a dialogue but instead a monologue between the President and his fervent supporters.

Finally, the President chose an online consultation as the sole modality for dialogue in preparation for the reforms he announced. However, it is clear that this unique modality was far from sufficient. In the end, the choice of the online consultation as the only mode and under the conditions mentioned above meant that there was not really a dialogue but instead a monologue between the President and his fervent supporters. Moreover, without a particularly intense activism and awareness-raising effort in the last days of the consultation, the number of participants would have been even smaller.

It was only when it became clear that Tunisians had little interest in the consultation that President Saied seemed to realize the need to organize a national dialogue, which was clearly not part of his initial plan.

But there is another problem that accentuates the lack of transparency in the President's plans: the September 2021 presidential decree announced the creation of a Commission of Experts to help the President prepare the draft constitutional and political reforms to be submitted to referendum in July 2022. Six months after this decree, and one month after the end of the consultation, this commission has still not been set up and its members are not known. Its methodology and the scope of its mandate, including in relation to how (or if) it will utilize the results of the online consultation are also unknown.

The recent mention (after 20 March) by the President himself and his entourage that the political and constitutional reforms will be the subject of a national dialogue is in itself an admission of the very poor results obtained through the consultation, more in terms of impact than in quantitative terms. Wouldn't it have been better to organize this debate in parallel with the electronic consultation and by involving as many actors as possible? This, together with the silence observed since 20 March concerning the Commission of Experts, proves that the President's plans and designs have been turned upside down and that we are entering a period of improvisation that could be the prelude to an intensification of the political crisis and to total constitutional disorder in the country.

What are the consequences for the electoral and referendum deadlines set by the President?

The political roadmap announced by the President was based on dates that are highly symbolic for Tunisians: a popular consultation starting on 1 January 2022 and ending on 20 March 2022 (Independence Day). Then, a referendum on the draft political and constitutional reforms prepared on the basis of the results of the consultation and which will be held on 25 July 2022 (Republic Day), and finally legislative elections on 17 December 2022 (anniversary of the start of the 2011 Tunisian Revolution).

Even if we leave aside the fact that the start date of the consultation was delayed until 15 January (to allow testing of the platform), the poor results of the online consultation, the ambiguity that still surrounds the Commission of Experts, and the announcement of the organisation of a national dialogue are all factors that may seriously undermine the timetable initially announced by the President.

The national dialogue alone risks calling everything into question: firstly, it will be necessary to define the parties that will participate and, at this level, the position of the President and the parties that support him does not seem to have changed: the President will exclude from the dialogue those he accuses of having robbed the state and harmed its interests. Secondly, the role of the UGTT, which seems to be the strongest potential constraint on the powers of the President, remains to be defined and an arm wrestling match between the two, or a UGTT boycott, could send the country back to square one. Finally, what issues will be the subject of the dialogue and will the results of the consultation form the basis of discussions (which the UGTT openly opposes) or will it start from scratch? These are all questions that could take many months to answer.

Even before the end of the consultation, the President produced some preliminary figures and trends (which were later confirmed). Thus, 86% of the participants prefer a presidential regime against only 3.1% for a parliamentary regime, 70.7% prefer the uninominal voting system against 21.8% for the list voting system, 92.2% are in favour of the recall procedure, 75.7% believe that the current justice system in Tunisia does not achieve justice and 75.1% believe that the solution to economic problems lies at the local level. These are the main results of the national consultation and they strongly coincide with the ideas and vision of the President. This confirms our opinion that we have witnessed a monologue between the President and the camp of his supporters and not a dialogue or even a consultation of Tunisia in its diversity of opinion.

If the dissolved parliament holds a confidence vote in a "national rescue government", it would amount to a "declaration of war" by the opposition in the eyes of the President...

The developments of the last few days on the political scene announce, most probably, an intensification of the crisis. Indeed, the politician Néjib Chebbi has launched an initiative that aims at thwarting the presidential project with the parties opposed to the President, which goes further than all previous movements and initiatives since Chebbi calls on the (dissolved) parliament to vote for confidence in a national rescue government. From the President's point of view, this step, if it materialises, would amount to a "declaration of war" by the opposition and the country will be open to all possibilities. Further, the well-known Tunisian NGO I Watch recently called on the President to cancel the July referendum and on the public to boycott it, since the Commission of Experts to draft the constitutional amendments and electoral law has not yet been established, with only 90 days left before voting.

For now, however, there are two alternatives on the horizon. The President and the UGTT could find common ground at the expense of the political parties opposed to the President, meaning things can move forward but not necessarily within the announced timeframe. It would most likely be necessary to postpone the legislative elections to the beginning of 2023.

Or, the President will bypass the UGTT and will act alone by instructing a very restricted commission to expeditiously prepare the reform texts and submit them to a referendum, relying on the support that he enjoys in the polls and on the population’s desire to leave the uncertainty and the "temporary." This "passage en force" may purportedly succeed on the formal level (validation by popular referendum) but it will open a parenthesis of political and social instability, which risks remaining open for a long time.

Tunisians like to remember that every time they were on the brink of collapse, they came to their senses in extremis and found a way to save the country. They call this the "Tunisian genius." We can, of course, retort that the real genius would be not to come to that point, but we can only hope that this genius, as unique as it may be, will be there once again!

Nidhal Mekki is a researcher at the Faculty of Legal, Political and Social Sciences of Tunis.

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